FKT v Children's Guardian

[2023] NSWCATAD 22

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FKT v Children’s Guardian [2023] NSWCATAD 22

Hearing dates:

26 September 2022

Date of orders:

27 January 2023

Decision date:

27 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
R Royer General Member

Decision:

(1) The time to lodge the application for Administrative Review is extended to 2 May 2022 pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.

(2) The decision of the respondent dated 16 March 2022 to refuse FKT’s application for a Working With Children Check Clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – whether a reasonable person would allow person to work unsupervised with his or her child

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Child Protection (Prohibited Employment) Act 1998 (NSW) (Repealed)

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v Office of the Children's Guardian [2014] NSWCATAD 111

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v CKF [2017] NSWSC 893

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CXZ v Children’s Guardian [2020] NSWCA 338

DGZ v Children’s Guardian [2022] NSWCATAD 250

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

M v M (1988) 166 CLR (HCA)

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455

R v Commission for Children and Young People [2002] NSWIRComm 101

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FKT (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Pen (Respondent)

Solicitors:
Applicant (Self- represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00125689

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing his Working With Children Check Clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a real and appreciable risk to the safety of children.

2. The applicant is referred to as ‘FKT’ in these proceedings. FKT is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. In order to prevent constructive identification of the applicant, some aspects of his background (including cultural matters and geographic locations where matters raised in these proceedings are relevant) are referred to in general rather than specific terms.

Procedural Background.

3. FKT applied for a WWCCC on 23 December 2020. On 1 February 2021, FKT was made subject of an interim bar and referred for risk assessment pursuant to sections 14 and 15 of the Child Protection (Working with Children) Act 2012, (‘the Act’). This was because FKT had previously been charged with offences and was referred for a risk assessment pursuant to Schedule 1.1 (a) the Act.

Schedule 1 Assessment requirement triggers

1 Offences

(1) Proceedings have been commenced against a person—

(a) ..

(b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

4. Clause 1 of Schedule 2 of the Act sets out a range of specific offences in the nature of assaults and other serious offences. Proceedings had been commenced against FKT for five offences which are listed in Schedule 2 Clause 1, and as such a risk assessment was triggered pursuant to s 14 and s 15 (1) of the Act.

14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

5. FKT was charged with the following offences:

1. Sexual Intercourse - victim with intellectual disability with intent to exploit – three counts

2. Aggravated sexual assault – victim under the age of 16 years – three counts

3. Incite person under 16 years to commit act of indecency with person under 16 years

4. Indecent assault where victim under the age of 10 years

5. Assault with act of indecency

Ultimately FKT was not convicted of any of those offences, but was assessed in accordance with the provisions of the Act, for his risk (if any) to children.

6. On 14 December 2021, the Children’s Guardian notified FKT that having conducted a risk assessment, they intended to refuse his application for a WWCCC and invited submissions. On 16 March 2022, the Children’s Guardian issued a Notice of Refusal pursuant to s 18 (2) of the Act because they were satisfied that FKT poses a risk to the safety of children.

7. On 2 May 2022, FKT lodged an application with the Tribunal for administrative review of the decision to refuse his WWCCC. The application was lodged outside of the time required under the NCAT Act and the rule 24(4) of the Civil and Administrative Tribunal Rules 2014, being 28 days. The Children’s Guardian did not press the lateness of the application (some two weeks) and FKT said that he was seeking advice from the Children’s Guardian once he received the refusal. The Tribunal extended time pursuant to s 41 of the NCAT Act.

8. Having considered all of the evidence and material before us, and the matters set out in s 30(1) and (1A) of the Act, for the reasons given below, whilst we are satisfied that FKT does not pose a risk to the safety and well-being of children, we are not satisfied that a reasonable person would allow his or her child to have direct contact with the affected person (FKT) that was not directly supervised by another person while the affected person (FKT) was engaged in any child-related work. In addition we find that the granting of a clearance is not in the public interest.

9. As a result of this finding the decision of the respondent will be affirmed.

Risk background

10. FKT was charged with the offences as set out at [5] above. The Children’s Guardian focused on reports of child sexual assault against FKT. These included sexual assault and indecent assault allegations. Two of the child complainants are brothers, with the third being their cousin. They are relatives of FKT. The adult complainant was a patron of a local business where FKT worked.

11. In the decision under review the Children’s Guardian focused on the charges relating to the complaints of the four complainants concerning FKT’s alleged conduct during the period 1997 to 2006. The three child complainants were vulnerable because they were children and FKT was an adult. The fourth (the adult) complainant was vulnerable because he presented with, and was diagnosed with an Intellectual Disability.

12. In respect of the three child complainant matters, FKT advised the Children’s Guardian that all of the allegations were fabricated. The Children’s Guardian relied on the fact that the Director of Public Prosecutions (DPP) continued with the proceedings after a review of the evidence thereby determining that there was sufficient evidence to proceed to the requisite standard (of beyond reasonable doubt). In their decision they noted that ‘if there was insufficient evidence for reasonable [sic] chance of conviction, it was open to the prosecution to discontinue proceedings on all charges. However that did not occur.’ The Children’s Guardian noted that the allegations were ‘historical’ in that they concerned alleged events 20 years prior to Court proceedings.

13. The trial concerning the two male child complainant charges were heard together by a Judge sitting alone. FKT was found not guilty of those charges predominantly as the Judge believed that the complaints had added further details to their original Police statements, a vagueness or lack of particularisation in the accounts including dates, concerns about their evidence and a general lack of satisfaction beyond reasonable doubt that the matters as alleged occurred.

14. In respect of the third child complainant the amended charge of assaulting a person under the age of 10 years being 5 years old, and at that time committed an act of indecency on her was heard summarily in the Local Court with a finding of not guilty.

15. In respect of the adult complainant the matter proceeded in the District Court. FKT was alleged to have sexually assaulted the complainant in the outdoor laundry area at the complainant’s home. The relevant charge being: Sexual intercourse with victim with intellectual disability with intent to exploit. The first trial took place before a jury with two related charges were preferred (one referencing a lack of consent and disability, and the other only disability). FKT was acquitted of the first but convicted of the second charge. However a new trial was ordered after the Court of Criminal Appeal was persuaded that a member or members of the jury was aware of the child related charges for which FKT was acquitted. A further example of juror misconduct was also determined.

16. A new Judge alone trial was ordered and FKT was acquitted of the remaining charge. The Judge accepted FKT’s version of events including evidence of his mother (concerning alibi evidence) and medical evidence that FKT could not jump a one metre high fence. The Judge also identified problems with the Crown case including inconsistencies in the evidence, issues around whether the identification process with the complainant was ‘contaminated’ by suggestion, and the real possibility that the assault occurred on a different day and was carried out by another person.

17. The Children’s Guardian in concluding their risk assessment noted that they assess allegations on the balance of probabilities and may or may not make a finding that on the balance of probabilities the conduct has occurred. The Children’s Guardian found that on the balance of probabilities, the abuse towards the vulnerable adult occurred. In respect of the child related allegations the Children’s Guardian acknowledged the absence of conviction but could not dismiss the allegations as groundless as they were not affirmatively satisfied that all the allegations did not occur. The Children’s Guardian considered that the cumulative effect of the similar allegations increased the likelihood that the conduct occurred.

18. In their decision the Children’s Guardian maintained that this cumulative effect of the allegations, from, multiple complainants over a period of years and in different locations outweighed the absence of any convictions, and that in conclusion (at [51]) appears to make a finding that the conduct did occur. They submitted that they relied on the material (as they are entitled to do in a risk assessment) to find that the conduct as alleged occurred.

Jurisdiction of the Tribunal

19. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well being of children to be paramount consideration

The safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

The application for administrative review

20. The grounds of the substantive application were:

I am seeking an administrative review of my case as I have presented evidence that the presiding Judge (Tupman) said at the end of my case that she asked the Crown “Mr Crown, how did you think that you had a case here’ to which he replied with a non verbal shake of the head and shrug of the shoulders to which Leonie Wright claims didn’t happen. L Wright has access to the transcripts which I cannot afford to get that I could point out where it was said. I believe L Wright has unfairly judged me in refusing my WWCC and wish this process to have light shined upon it and exposed.

21. More detailed grounds were provided in written material submitted by FKT.

22. The issue to be decided by the Tribunal is whether on the balance of probabilities FKT poses a risk to the safety and well-being of children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30(1A) of the Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard, the Tribunal is determining an applicant’s current risk.

The working with children legislative scheme

23. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

24. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

25. Section 8(1) of the Act prohibits a person from engaging in child-related work unless, the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

26. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

27. Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). FKT was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as referred to above.

28. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

29. Section 30 sets out the factors that the Tribunal must consider in determining a review application in order to determine risk. Section 30(1) of the Act provides:

30 Determination of applications and other matters

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i1) any order of a court or tribunal that is in force in relation to the person,

(j) any information given by the applicant in, or in relation to, the application,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k) any other matters that the Children’s Guardian considers necessary.

30. If at the conclusion of the s 30 (1) process the Tribunal determines that an applicant for a clearance is not a risk to the safety of children, then the Tribunal must consider the matters set out at s 30 (1A) of the Act.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that—

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

31. Only after an applicant has successfully navigated s 30(1) and (1A) can the Tribunal grant a WWCCC on administrative review.

Burden of Proof

32. As has regularly been observed, the jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

33. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

34. An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s 28 of the Act.

35. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

36. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal (ADT), in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

37. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

38. We note that since the cases referred to above ‘risk’ has now been given a statutory definition in the Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

39. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

40. As noted above an application under s 27 of the Act is an administrative review. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The hearing

41. The matter was heard over one full day. Due to the COVID 19 pandemic provisions, the hearing occurred by AVL.

42. FKT gave evidence at the hearing, and was subject to cross-examination. As FKT was not legally represented, the Tribunal commenced with some preliminary questions to obtain FKT’s evidence in chief prior to a lengthy cross-examination by the Children’s Guardian representative.

43. In opening submissions the Children’s Guardian submitted that FKT posed a risk to the safety and well-being of children and if the Tribunal did not accept that position then in the alternate the Tribunal would find that the reasonable person would not allow their child to be unsupervised while in the presence of FKT engaged in child related work.

44. Reference was made to the case of DGZ v Children’s Guardian [2022] NSWCATAD 250 which referred to a two stage approach in addressing allegations of harm. (1) a consideration of the likelihood of a harmful event in the future and (2) the severity of harm caused by the incident.

45. Reference was made to the basis of FKT’s application being that he seeks to work as a porter in the Local Hospital, which the Children’s Guardian characterised as a ‘confined environment’. FKT’s position at pg 505 of the s- 58 documents was that he would not be in the presence of children unsupervised. However we note that a WWCCC allows a person to work in any capacity with children unsupervised.

46. The Children’s Guardian also submitted that a finding of risk can be made even if a finding cannot be made as to the truth of the allegations (that the matters occurred), because a finding of risk is the issue.

47. The Children’s Guardian made submissions about the seriousness of the charges that FKT faced and the circumstances whereby the complainant’s were at all times vulnerable.

Written Evidence

FKT’s written material

48. FKT filed a number of written items in support of his application.

1. Exhibit ‘A 1’: the report of Dr T Sheppard dated 22 July 2022.

2. Exhibit ‘A-2’ FKT’s submission to the Children’s Guardian (reproduced at 463-465 of the s 58 documents) and references Flood (3/2/2021 and 11/2/2021), Smith (11/2/2022 and 5/2/2021), Hayes (8/2/2021), K ‘O’ (8/2/2021), G ‘O’ (8/2/2021).

3. Exhibit ‘A-3’ USB Key – Video

FKT also provided brief written submissions and made oral submissions at the conclusion of the evidence.

Children’s Guardian’s written material

49. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31 of the Act.

1. Exhibit ‘R-1’ Respondent’s Section 58 ADR Act -538 pages.

2. Exhibit ‘R-2’ documents under s 31 of the Act 3 x bundles totalling 1524 pages + annexures.

50. The Children’s Guardian also filed and served detailed written submissions and made oral submissions at hearing at the conclusion of the evidence.

Applicant’s evidence at hearing

51. In evidence in chief, FKT referred to the adult complainant matter. He said that he participated in an ERISP interview and was cooperative with Police. He offered police forensic material to support his position.

52. FKT referred to [50] of the refusal decision dated 16 March 2022 where the Children’s Guardian makes a finding that the conduct directed against the adult complainant occurred. FKT said that the District Court Judge found that he could not have assaulted the adult victim (to any standard of proof) and that the Children’s Guardian’s response was illogical.

53. In cross examination FKT was taken to pg 504 of the s 58 documents whereby one charge sequence was mentioned on 11 occasions prior to the hearing on the Local Court. FKT said that the numerous adjournments were predominantly caused by the prosecution due to a lack of available evidence to proceed.

54. FKT denied the allegations concerning the male child complainants: Allegation 1: That FKT performed a sexual act on Complainant ‘M’ at the back room of a restaurant owned by the Grandparents. Allegation 2: that FKT put on a pornographic video, rubbed ‘M’s crotch, placed ‘M’s hand on FKT’s genitals and convinced ‘M’ to engage in oral sex. Whilst there was a possibility that one of the boys (‘M’) had spent time at their grandparent’s home and played computer games there with FKT (such as Foxtel and Austar) FKT denied that he ever put on pornography for that child to view. FKT said that there were always women in the house at that period of time whenever that child might have come over. FKT emphatically denied all allegations on oath before the Tribunal.

55. When asked what he believed would be the impact on a 9 year old boy of the alleged conduct FKT said that he believed that it would alter the boy’s perception on life.

56. FKT was asked about the allegation arising from a holiday to Adelaide with his extended family. Allegation 3: that FKT engaged in oral sex with ‘M’. FKT said that he did not recall ever being left alone with ‘M’ during this holiday whilst the rest of the family went into the city to attend a cultural festival. FKT said that ‘M’ would have gone with his parents to the cultural festival rather than being left alone with him. FKT denied the allegation.

57. In respect of a further allegation (Allegation 4: that FKT drank Jim Beam and on 30 to 50 occasions FKT encouraged ‘M’ to drink alcohol when he was between 8 and 12 years of age), FKT denied this allegation. He said that he did drink Jim Beam at that time but does not still drink it. FKT said that there was no way he would have engaged in this behaviour because not only is it abhorrent but that ‘M’ had a medical episode from accessing alcohol at a family function when he was two years old and nearly died. This incident involved ‘M’ drinking beer at a family barbeque. FKT said that he did not supply alcohol and was concerned that such activity would damage a young boy’s brain.

58. In respect of the second child complainant ‘A’, FKT denied a further (5^th allegation) that he supplied alcohol to ‘A’ at his grandparent’s home. The sixth allegation, that FKT attempted to show ‘A’ a pornographic video at his grandparent’s home was also denied emphatically by FKT.

59. FKT stated in his evidence that whilst he does not have personal knowledge of such matters, he believes that the alleged behaviour would clearly have a detrimental effect on that child and would be traumatic for a young person.

60. In response to questions about the 6^th allegation (digital penetration of ‘T’ in 1997) which occurred at a family event where ‘T’ had stayed over at her grandparents’ home, FKT denied this allegation. FKT denied that ‘T’ would have stayed at her grandparents’ home at any time when FKT was there.

61. In response to allegations involving the adult complainant (Mr ‘W’) (7^th allegation concerning oral sex 2006) FKT said in his evidence that he understood ‘W’s disability and described him as ‘child like’. He said that he had known ‘W’ since the 1990’s but that he did not visit his house in November 2006 when, and where, the offences are alleged to have occurred. He was asked whether he believed that a person with ‘W’s diagnosis could consent to a sexual act. FKT said that he was unsure but described W’ as a ‘gay man’ who was often talking about sexually based matters in conversation with FKT when he encountered him whilst FKT was working at the Club as a security guard. FKT said that he did telephone ‘W’s house in November 2006 but did not visit there. When asked what was discussed FKT said that they discussed pornographic videos and referred to a title ‘Naughty Nurses’.

62. FKT said that ‘W’ was always coming into the foyer and talking to him while he worked on the front desk of the Club. He said that he spoke to ‘W’ many times. It was put to FKT that it was inappropriate to seek and obtain the telephone number of an intellectually disabled man for the purpose of making arrangements with him for borrowing a pornographic video. FKT stated that he now believed in hindsight that such actions were inappropriate on his part. FKT said that at the time he felt sorry for ‘W’, who he said did not have much of a life because he was also the carer for his two adult brothers who had more significant disabilities than ‘W’.

63. FKT was questioned about a further allegation whereby he was charged (but not proceeded on) for an offence involving stalking and intimidation. This related to a matter involving Mr ‘B’ who was a juror who sat in the trial where FKT was convicted but the conviction was overturned and a fresh trial ordered by the Court of Criminal Appeal, due to juror misbehaviour. (Personal prior knowledge by juror of other allegations against FKT and a subjective Facebook post about FKT’s guilt prior to verdict).

64. FKT was allegedly seated in a car and saw ‘B’ walking on the street and allegedly called out to ‘B’ who replied apparently not recognising FKT. FKT then allegedly took ‘B’ on verbally about his interaction bearing in mind his involvement in convicting him. ‘B’ then threatened to go to the Police which FKT neither encouraged nor dissuaded ‘B’ on. The charge was dismissed.

65. FKT said that he did not approach ‘B’ or call out to him. He said that he did interact with ‘B’. When asked whether he accepted that his behaviour with ‘B’ was inappropriate FKT denied this was the case. He said that it was not really inappropriate and that ‘B’ had in fact approached him not the other way around.

66. FKT was subject to further general questioning about his insight into the impact of his actions on others. FKT rebutted many of the negative assertions put in cross examination, in the main characterising himself as a non-offender, who had not engaged in any behaviour requiring reflection and the need to have insight on the impact of his actions because his actions were extremely limited. The one conceded matter being the arrangements and obtaining of the telephone number in order to borrow the pornographic video from ‘W’.

67. FKT referred to his Child Protection Training Course completion certificate (at page 447 of Exhibit ‘R-1’) as evidence supporting appropriate insight into child protection matters and the impact of harm on a child.

68. In re-examination the Tribunal gave FKT the opportunity to clarify anything arising from his cross-examination. He reiterated that his actions involving ‘W’ were somewhat influenced by ‘feeling sorry for him’.

69. FKT said that now he does not drink alcohol at all. In respect of the incident where ‘M’ needed medical treatment for alcohol intake, FKT provided a greater context and said that at the family barbeque ‘M’ had been taking a sip of everyone’s beer. Whilst family might have encouraged a child to take a ‘one off’ sip, the matter had got out of hand and ‘M’ was unsupervised leading to the level of intake and resulting need for medical intervention.

70. The Tribunal asked some questions of FKT at the conclusion of his evidence consistent with the powers under s 38 of the NCAT Act. Specifically, the Tribunal was interested in why FKT believes that members of his extended family made these very serious allegations of child sexual abuse against him. FKT believes that the family allegations were merely an attempt to obtain money by way of compensation.

71. FKT said that the allegations were all a ‘try on’ by the children’s parents. He said that similar allegations were first made against the brother in law in 2012/2013 but the allegations came to nothing. Then fresh but similar allegations were made against FKT.

72. FKT said that ‘M’ made the allegations against him whilst ‘M’ was in Hospital recovering from a drug psychosis in 2012. FKT said that these family allegations were all part of a conspiracy. The background being that ‘A’ and ‘M’s father had lost his long term job due to drug related issues. The father and his wife had moved interstate. The sister and brother in law (referred to as Mr and Ms ‘O’) had taken over the running of the family fish and chip shop in town. The economic impact on the family of ‘A’ and ‘M’ was significant, so there was desire to ‘get back at the family’ first through the brother in law Mr ‘O’ and then through FKT.

73. FKT said that the basis of seeking his WWCCC was to allow him to return to his work at the Hospital, where he was employed for many years as a Porter (which also involves Wards men duties). FKT said that his work as a Porter is valuable work and very rewarding. FKT referred to how sometimes it involves participating with medical staff in saving life, as referred to in some of his references.

74. FKT’s written evidence comprised his own responses to the Children’s Guardian information requests, his expert report and referee statements. The Tribunal noted that none of the witnesses were required for cross examination at hearing.

75. Dr Sheppard’s report (Exhibit A-1) is based solely on information provided by FKT. The report confirms this on page 2. Under the heading ‘professional Opinion’ Dr Sheppard opines that there is no history of violence towards others or matters that would render (FKT) unfit to work with children other than the Court matters brought against him.

76. Dr Sheppard also opines that because of his positive work history and the roles that he operated in, FKT’s personality is conducive to success in positions which require empathy and care towards others, as well as a clear understanding of professional constraints placed on his behaviour. His history of AVO adherence (issued following charges) also suggests that he respects the law and his responsibilities towards his community.

77. Dr Sheppard goes on to refer to the charges being the only adverse matters concerning FKT. Because of the acquittal on those matters Dr Sheppard forms the opinion that there is ‘no criminal record which might bar (FKT) from receiving a clearance for working with children’.

78. Dr Sheppard concludes by stating that: ‘… (FKT) is suited to work with children. The evidence for my opinion comes from his past work and personal history. At no point during his 15 years as a licensed security guard or his 6 years at (name) Hospital has there been any evidence that he is unable or unwilling to work professionally and appropriately with others. Personal histories provide important insights into personality and (FKT’s) is consistent with that of a person who can display empathy, understanding and care for the needs of others and who neither exploits nor seeks to take advantage of them.’

Children’s Guardian’s submissions

79. The Children’s Guardian filed and served written submissions and made oral submissions at the hearing. The Children’s Guardian submitted that the first task for the Tribunal was to determine whether the allegations were true or substantially true. The second task is to determine whether FKT posed a risk to the safety and well-being of children. The third task concerned s 30(1A) whether the reasonable person would allow FKT unsupervised access to their children cognisant of the matters before the Tribunal and whether it was in the public interest to grant FKT a WWCCC.

79. In respect of FKT’s evidence tendered at hearing the Children’s Guardian submitted that the expert report carried little weight because it focussed on the wrong test, not whether FKT was a risk to children, but whether FKT should be granted a WWCCC. It was submitted that the expert was mistaken in their belief that a criminal conviction would be a bar to a WWCCC or that such a conviction would be the only possible bar to a clearance issuing.

80. The lack of any material being provided by FKT other than his own material was considered by the Children’s Guardian as being detrimental to any meaningful outcome from the report that could be relied on either way to establish (or otherwise) the existence of risk. No risk assessment or independent psychological evaluation was conducted in the expert’s assessment of FKT for the reasons outlined above.

81. In respect of the character references, the Children’s Guardian submitted that inferences cannot be drawn from the references as to FKT’s risk (or otherwise) to children. In addition, the references of Mr and Ms ‘O’ cannot be relied upon for s 30 (1A) as they are not independent or sufficiently objective and could not be considered representative of the ‘reasonable person’.

82. The Children’s Guardian submitted that the 10 allegations against FKT are standalone allegations. In this regard, the frequency of the behaviour and pattern of behaviour was considered very concerning and that risk exists on the suggested findings arising from the evidence. The Children’s Guardian submitted that the various descriptors of the nature of the offences (masturbatory and oral sex rather than penetrative intercourse) gave a commonality to the allegations amongst the three child victims. The allegations cannot be tested further.

83. The Children’s Guardian submitted that the pornography allegations had a ring of truth to them bearing in mind the conceded matters involving Mr ‘W’ concerning the attempted borrowing of pornography from him. It was not using pornography that was so much the issue, but FKT having a discussion with Mr ‘W’ a person who by FKT’s own account had a ‘childlike brain’, that made the issue inappropriate. The Children’s Guardian submitted that for FKT to have a discussion about borrowing access to, and use of, pornography in such circumstances showed a significant lack of insight from FKT.

84. The Children’s Guardian submitted that even if risk was not found then the reasonable person would still not allow their child to be exposed to child related work performed by FKT. This was in part because of the unsupervised requirement in the section but also the gravity of the work in that the proposed work would take place in a health care setting. We note again that, if a clearance was granted, FKT would be able to work with children unsupervised in any context.

FKT’s submissions

86. FKT submitted that Dr Sheppard’s report was based on the NCAT requirements for an expert report. He said that he had commissioned the report with some difficulty and expense following the procedural directions made by the Tribunal on an earlier occasion. Dr Sheppard had flown in from interstate to do his assessment of FKT.

87. FKT submitted that the references from Mr and Ms ‘O’ were positive and should be accepted. FKT submitted that the references demonstrated that he had a history of looking after their children (both disabled and non-disabled) with no matters of concern. Referee Flood was a colleague from the Hospital and provided two positive references.

88. FKT drew the Tribunal’s attention to the transcript of the original District Court Trial – (which resulted in a guilty verdict by the Jury overturned on appeal) where at 1172 of the s-31 bundles (Exhibit ‘R-2’), the Judge criticises the Crown Prosecutor for misleading the witness and the Court.

89. In closing, FKT submitted that he did not need to put on any further submissions addressing the matter as there was no onus for him to discharge and he had been acquitted of all matters with nothing adverse against him proven.

Consideration

90. The issue in these proceedings is not just determining whether the conduct subject of all of the allegations or charges occurred, and separate to that question and answer, whether FKT’s currently presents as a risk to the safety and well-being of children. Put in a more direct manner what is FKT’s current or future likelihood of harming children. We take this clearly from what we perceive to be a partial lack of insight into the circumstances and context of the allegations as well as an apparent lack of understanding as to an appropriate manner to avoid risk of harm behaviour exhibited by a disabled person who might be intellectually and emotionally considered similar to a child or young person.

91. Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

92. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

93. The alleged conduct is serious and is set out when the allegations are referred to above. These matters are clearly serious both in respect of the severity of the alleged breach of trust but also in the level of harm that they could cause to a victim. They are in the context of child protection noting the reference in s 4 of the Act to protecting (children) from child abuse. These matters appear to be the major matters upon which the risk assessment concluded that FKT was a risk to children.

94. Whilst criminal charges and Police investigations occurred, the matters were ultimately discharged in the criminal context. FKT was acquitted of any wrongdoing. The fact that the matters against FKT did not result in ultimate convictions or findings of offence proven does not detract from their seriousness. All assault matters involved children or an adult with a disability. The matter of the intimidation matter is prima facie serious, but on the available evidence is of much lesser weight than the assaults.

95. In our view, some concerns remain as to FKT’s risk to the safety and well-being of children due to the nature and context of the incidents and FKT’s response to them. Whilst on the one hand all allegations are denied, at no time does FKT engage on the issue before the Tribunal. The only explanation given for the allegations is along the lines of a conspiracy by certain members of his family with an axe to grind. Other than FKT having work in the family business it is difficult to discern that motivation or basis those family members would have for singling FXT out.

(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.

96. It is clear that the matters referred to under s 30(1)(a) cover a period of approximately 10 years. The last matter is said to have occurred in 2006. Whilst there has been one recording of adverse information since that time we place little to no weight on that matter. (the intimidation charge).

97. We note again that FKT denies the matters. However notwithstanding those denials, FKT did not at hearing or otherwise indicate how he might mitigate risk other than saying that there was little that he needed to address based on his blanket denial of all the allegations other than the matter of borrowing the pornographic video involving Mr ‘W’.

(c) The age of the person at the time the offences or matters occurred.

98. FKT was between 16 and 26 years at the time of the alleged behaviour and 41 years of age at the time of the hearing. The applicant is now 42 years of age.

(d) The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim.

99. In respect of the trigger matters the child complainant’s were aged from 5 to 13 years of age. They were vulnerable because in some instances FKT was an adult, in other instances a 16 or 17 year old adolescent, and the Uncle of the child complainants.

100. The adult complainant was vulnerable because of his disability.

(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person.

101. The difference in age between FKT and the child complaints was significant. For (child) complainant 1 the difference in age was about nine years with the complainant being aged 8-12 years and FKT 17-21 years.

102. For (child) complaint 2 the difference was approximately 12 years with FKT being around 23 years of age at the time.

103. For (child) complainant 3 the difference as approximately 11 years with FKT being approximately 16 years of age. For all three child complainants FKT was their uncle.

104. For the fourth complainant the difference was approximately 11 years in that the complainant was older than FKT. As they were both adults the significant issue here is the complainant’s intellectual disability. The complainant knew FKT through his work at the local club.

(f) Whether the person knew or could reasonably have known, that the victim was a child.

105. In respect of the trigger matters involving the child complainants, as their uncle FKT would have known that all three were children.

(g) The person's present age.

106. FKT was 41 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age. These proceedings do not only concern sexual offending, but rather risk to children. However sexual offending is a significant and serious form of child abuse.

(h) The seriousness of the person's criminal history and the conduct of the person since the offences occurred.

107. FKT does not have a criminal record or history. He has an administrative record of having been charged with some offences and indicted on other serious offences as set out centrally in these reasons and the decision under review. However, as FKT was acquitted of all charges, his ‘history’ merely shows the actions taken by Police and Prosecutors. The history cannot be formally used against him in criminal proceedings but may be considered as part of the overall evidence leading to the outcome of a risk assessment.

108. FKT’s conduct since the matters alleged revolves around his employment and family, as well as being prosecuted and defending those matters. The offending allegedly occurred from, 1996 to 2006. FKT’s criminal matters occupied a significant amount of time in the years leading up to and including 2017. He has been heavily invested in these post allegation years in defending the matters and clearing his name.

(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition.

109. Objectively the likelihood of repetition of the alleged conduct is considered low, given that there have been no reports or similar allegations of FKT engaging in inappropriate behaviour with children or disabled adults.

110. The Children’s Guardian however submitted that FKT’s 10 year history of allegations and the pattern created by those allegations creates a pattern of allegations which indicates some risk of future offending.

(i1) Any order of a court or tribunal that is in force in relation to the person.

111. There is no relevant evidence or matters to consider under this criteria.

(j) Any information given by the applicant in, or in relation to, the application.

112. The applicant tendered a number of character references in support. Whilst the Children’s Guardian submitted that little weight can be attached to these referees, in our view they are of some weight. They all attest to knowledge of the matters against FKT, which is understandable bearing in mind the public nature of the prosecutions occurring in the town where they all lived.

113. The statements of Mr and Ms ‘O’ add some credibility to FKT’s ‘conspiracy’ theory about why the allegations were made. To an extent they corroborate FKT’s background as to why allegations were made within the extended family. These witnesses were not required for cross examination at hearing to test the quality of their evidence. Whilst there is no onus on FKT, it was open to him to call his witnesses to strengthen his argument. Likewise, it was open to the Children’s Guardian to challenge aspects of FKT’s evidence beyond cross examination of FKT himself by requiring his witnesses for cross examination. Like FKT the Children’s Guardian bears no onus and has no statutory burden to overcome additional to maintaining their position that FKT continues to pose a risk to the safety and well-being of children.

114. FKT provided the expert report of Dr Sheppard. That report has been commented on above. Unfortunately for FKT irrespective of his diligence in obtaining the report, it provides little assistance to the Tribunal in assessing FKT’s current and future risk. Part of this is due to the limited utility of risk matrix’s when dealing with non-offenders, which at law describes FKT’s status. Irrespective of the fact that FKT is not a violent offender some risk assessment could have been achieved had the author been provided with third party material and applied a risk assessment matrix coupled with physiological testing.

115. We agree that the report focussed on the wrong test, not whether FKT was a risk to children, but whether FKT should be granted a WWCCC. It appears that the author believed that a criminal conviction would be a bar to a WWCCC or that such a conviction would be the only possible bar to a clearance. A conviction for any crime (other than those listed in s 26 of the Act) does not automatically disentitle an applicant to a WWCCC.

116. The real problem with the provenance of the report arises because the author was only in possession of material authored by FKT or prepared on his behalf. FKT also provided written submissions which addressed errors and inconsistencies in the evidence concerning the criminal prosecutions of him. We accept those matters raised by FKT. In our view they are not hugely relevant bearing in mind the acquittals of him by the Courts on all charges. We do accept however that they go some way to highlighting errors in the prosecution, errors which FKT submits amount to highlighting that there was no basis to maintain the prosecutions.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

117. There is no material obtained under s 36A.

(k) Any other matters that the Children's Guardian considers necessary.

118. The Children’s Guardian’s concerns, as provided in their submissions are set out above. The Children’s Guardian maintained that FKT is a risk to the safety and well-being of children.

Further consideration

119. Turning to how the Tribunal should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523, Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, matters in the current case were not settled, in that the Courts had not made any positive findings on the conduct in respect of the various indictments to the criminal standard of beyond reasonable doubt. Either by direction or consideration of the evidence the Courts were satisfied that the Crown had not made it’s case to the requisite standard and all matters against FKT were ultimately discharged.

120. In bringing and maintaining a prosecution, the Crown must be satisfied that on the available evidence a properly instructed jury would more likely than not (to the requisite beyond reasonable doubt standard) find the accused guilty. Much has been said by the Children’s Guardian that the various cases against FKT were strong otherwise the DPP would not have brought (and maintained) the continuation of proceedings against him. How should the Tribunal view this material?

121. At pars 29 - 33 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

150. This would highlight to the reasonable person that FKT does not understand how to appropriately react and respond to behaviour (not necessarily initiated by him) that might cause harm to a vulnerable person, like a child. Mr W on FKT’s own evidence is described as having ‘the mind of a child’. The appropriateness of FKT engaging in behaviour with such a person based around sexual acts (depicted in content) would be a matter which would in all likelihood cause the reasonable person concern.

151. The eventual distress that the whole arrangement caused for Mr ‘W’ (the withdrawal of the offer and subsequent detailing of that and other matters to Police through his Guardian) would add further concerns to FKT’s behaviour even if the evidence does not establish any criminality.

152. A reasonable person whilst approaching the matter with some caution would, in our view, find that any risk was sufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

153. The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal.

154. We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

158. In FKT’s situation a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find that a reasonable person would not allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work.

159. With the passage of time and the lack of any further adverse matters arising, the reasonable person may change their position. Even if the allegations concern a period now of 15 years in the past the currency of the criminal prosecutions and proceedings would weigh on the mind of the reasonable person. Those matters are far more recent. It may be that in future with enough time passing a reasonable person would view all matters with the knowledge of the effluxion of time. In that regard on further application the concerns in the context outlined above would have diminished.

160. The Tribunal is also having made the findings above that it has at [158], not required to consider section 30 (1A) (b) that it is in the public interest to make the order. However, for completeness we address this matter below.

161. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

162. In our view it would be contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of the applicant’s right to engage in his preferred employment for the stated purposes of the WWCCC, contrasted with the protection of children, are not in this instance complementary and in the public interest, as the issuing of a clearance could pose an unjustified risk to the safety of children.

163. In our view FKT’s evidence indicated that, to an extent, he lacks insight into aspects of his alleged behaviours (even if findings are not made on all allegations). His main position was that as he had not engaged in conduct he had no claim to make or prove. As there was nothing adverse against him in his mind (noting the criminal court outcomes), then there was no reason as to why he needed to remain on the front foot and establish an understanding of the regime. Whilst FKT had completed child protection training it was only on reflection and to an extent prompting by the Tribunal that he turned his mind to the impact that certain alleged behaviours might have on a child.

164. The material he provided his expert was not totally objective and it did not allow the expert to consider adverse material (other than the charges) in making their assessment and providing a professional opinion as to risk.

165. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we believe that it is not the public interest to grant the clearance. FKT’s need for the WWCCC is to return to better employment whereby his remuneration and job satisfaction are greater. When balancing the need to give the broader interests of community values as opposed to the private interests, the broader interests will always prevail over an applicant’s desire to work in their chosen field.

166. As a result, on the totality of the evidence until there is a greater passage of time between the matters having been prosecuted and no further adverse matters coming to attention, we find that it is not currently in the public interest to grant the clearance.

Conclusion

167. For the reasons set out above, we reach the following conclusion.

168. The evidence and material received by the Tribunal establishes that the Tribunal is satisfied that while FKT does not currently pose a risk to the safety and well-being of children, a reasonable person would not allow FKT to have unsupervised access to their child while he was engaged in child related work.

169. In addition we find that it would not be in the public interest to grant the clearance.

170. It therefore follows that the correct and preferable decision is to affirm the decision of the Children’s Guardian.

Orders

1. The time to lodge the application for Administrative Review is extended to 2 May 2022 pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.

2. The decision of the respondent dated 16 March 2022 to refuse FKT’s application for a Working With Children Check Clearance is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

20 February 2023 - Updated Counsel for Respondent.

Decision last updated: 20 February 2023